EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
ARAMARK CORPORATION
(Originally Incorporated on September 7, 1984
under the name "ARA Acquiring Company")
FIRST: The name of the Corporation is ARAMARK CORPORATION.
SECOND: The address of the Corporation's registered office in the State
of Delaware is 1209 Orange Street, in the City of Wilmington, County of New
Castle. The name of the Corporation's registered agent at such address is The
Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or
promoted by the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have the authority to issue is 185,000,000 shares, consisting
of (i) 10,000,000 shares of Series Preferred Stock, $1.00 par value per share
(the "Series Preferred Stock"), and (ii) 25,000,000 shares of Common Stock,
Class A, $.01 par value per share (the "Class A Common Stock"), and (iii)
150,000,000 shares of Common Stock, Class B, $.01 par value per share (the
"Class B Common Stock"). The Class A Common Stock and the Class B Common Stock
are referred to collectively as the "Common Stock".
The Board of Directors shall have the full authority permitted by law
to fix full or limited, or no voting power, and such other designations, powers,
preferences, and relative, participating, optional, special or other rights
(including, as examples and not as a limitation, multiple voting powers and
conversion rights), and qualifications, limitations or restrictions of any
series of the class of Series Preferred Stock that may be desired.
A statement of the designations, powers, preferences, and rights of
each class and series of stock, and the qualifications, limitations and
restrictions in respect thereof, is as follows:
4A. Common Stock
1. Classes.
The Common Stock shall be divided into two classes, the Class
A Common Stock and the Class B Common Stock. The powers, preferences and rights
of the Class A Common Stock and the Class B Common Stock, and the
qualifications, limitations and restrictions thereon, shall be in all respects
identical, except as otherwise provided in this Part 4A.
2. Dividends. Subject to any provision in this Article FOURTH
with respect to any stock of the Corporation to the contrary, out of the assets
of the Corporation which are by law available for the payment of dividends,
dividends and other distributions may be, but shall not be required to be,
declared and paid upon shares of Common Stock, and the holders of shares of
Class A Common Stock and Class B Common Stock shall be entitled to receive the
same dividends and other distributions, ratably with the holder of one share of
Class A Common Stock entitled to receive ten times what the holder of one share
of Class B Common Stock is entitled to receive; provided, however, that in the
case of dividends or other distributions payable in Common Stock, only shares of
Class B Common Stock shall be distributed with respect to Class B Common Stock
and only shares of Class A Common Stock shall be distributed with respect to
Class A Common Stock, and any such distribution shall be made ratably, with the
holder of one share of Class A Common Stock entitled to receive the same number
of shares of Class A Common Stock as the number of shares of Class B Common
Stock the holder of one share of Class B Common Stock shall be entitled to
receive; and provided further, that the Board of Directors may declare
and pay dividends and other distributions with respect to the Class A Common
Stock without declaring or paying any dividend or other distribution with
respect to the Class B Common Stock.
3. Voting Rights.
(a) Subject to the special voting rights of the
holders of any other stock of the Corporation, the Common Stock (and any other
stock of the Corporation which may be entitled to vote with the holders of
Common Stock), voting as a single class except where the Class A Common Stock
and the Class B Common Stock (and such other stock) are required by law to vote
as separate classes or series on a particular matter, shall possess all of the
voting power of the Corporation with respect to the election of directors and
for all other purposes.
(b) Each share of Common Stock, whether Class A
Common Stock or Class B Common Stock, shall be entitled to one vote on all
matters submitted to a vote of the Corporation's stockholders.
4. Liquidation. Upon the liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, after provision
for the payment of creditors and after provision shall be made for holders of
all shares of stock of the Corporation having a preference upon liquidation,
dissolution or winding up, the remaining assets of the Corporation shall be
distributed among the holders of Common Stock, ratably, with the holder of one
share of Class A Common Stock entitled to receive ten times what the holder of
one share of Class B Common Stock is entitled to receive, and, to the extent
provided in this Article FOURTH, the holders of any other stock of the
Corporation which may be entitled to share in such distribution.
5. Conversion of Class B Common Stock.
(a) Optional Conversion. Each share of Class B Common
Stock may at any time, but only with the prior approval of the Board of
Directors, be converted at the election of the holder thereof into one-tenth of
a fully paid and nonassessable share of Class A Common Stock. Subject to the
terms of any such approval, the holder of shares of Class B Common Stock may
elect to convert any or all of such shares at one time or at various times in
such holder's discretion. Such right shall be exercised by delivering a written
notice of the election by the holder thereof to convert, in form satisfactory to
the agent for the registration of transfer of shares of Class B Common Stock and
to the Corporation, accompanied by any certificates representing the shares of
Class B Common Stock to be converted.
(b) Mandatory Conversion. At any time when the Board
of Directors authorizes and directs the conversion of all the Class B Common
Stock into Class A Common Stock, then, at the time designated by the Board for
the occurrence of such event, each outstanding share of Class B Common Stock
shall be converted into one-tenth of a share of Class A Common Stock and no
further shares of Class B Common Stock may be issued thereafter.
(c) Manner of Conversion. In the event of any such
conversion pursuant to paragraph (a) or (b), any certificate or certificates
representing shares of Class B Common Stock so converted shall thereupon and
thereafter be deemed to represent the number of shares of Class A Common Stock
issuable upon such conversion; all rights of such holder arising from ownership
of shares of Class B Common Stock shall cease at such time, and such holder
shall be treated for all purposes as having become the record holder of such
shares of Class A Common Stock at such time and shall have and may exercise all
the rights and powers appertaining thereto. No adjustments in respect of any
past dividends and other distributions shall be made upon the conversion of any
share of Class B Common Stock. The Corporation shall at all times reserve and
keep available, solely for the purpose of issue upon conversion of outstanding
shares of Class B Common Stock, such number of shares of Class A Common Stock as
may be issuable upon the conversion of all such outstanding shares of Class B
Common Stock.
4B. Series D Stock
1. Designation. There shall be a series of Series
Preferred Stock which shall consist of 20,000 shares and shall be designated as
Adjustable Rate Callable Nontransferable Series D Preferred Stock (the "Series D
Stock"). The number of authorized shares of Series D Stock may be increased by
resolution of the Board of Directors.
2. Rank.
(a) Rank of Series D Stock. To the extent and in the
manner provided in this Part 4B, the Series D Stock shall, with respect to
dividend rights and rights on liquidation, rank (i) junior to or on parity with,
as the case may be, any other stock of the Corporation, the terms of which shall
specifically provide that such stock shall rank senior to, or on parity with, as
the case may be, the Series D Stock with respect to dividend rights or rights on
liquidation or both, and (iii) senior to any other stock of the Corporation.
(b) Certain Definitions. The following terms as used
in this Part 4B shall be deemed to have the meanings set forth in this section.
(1) The term "Participating Stock" shall mean the
Common Stock and any other stock of the Corporation of any class which has the
right to participate in the distribution of either earnings or assets of the
Corporation without limit as to the amount or percentage.
(2) The term "Parity Stock" with respect to
Series D Stock shall mean the Series D Stock and all other stock of the
Corporation ranking equally therewith as to the payment of dividends or the
distribution of assets upon liquidation. The term "Dividend Parity Stock" with
respect to Series D Stock shall mean the Series D Stock and all other stock of
the Corporation ranking equally therewith as to the payment of dividends. The
term "Liquidation Parity Stock" with respect to Series D Stock shall mean the
Series D Stock and all other stock of the Corporation ranking equally therewith
as to distribution of assets upon liquidation.
(3) The term "Junior Stock" with respect to
Series D Stock shall mean the Participating Stock and all other stock of the
Corporation ranking junior thereto as to the payment of dividends and the
distribution of assets upon liquidation. The term "Dividend Junior Stock" with
respect to Series D Stock shall mean the Participating Stock and all other stock
of the Corporation ranking junior thereto as to the payment of dividends. The
term "Liquidation Junior Stock" with respect to Series D Stock shall mean the
Participating Stock and all other stock of the Corporation ranking junior
thereto as to distribution of assets upon liquidation.
(4) The term "Senior Stock" with respect to
Series D Stock shall mean all stock of the Corporation ranking senior thereto as
to the payment of dividends or distribution of assets upon liquidation.
3. Dividends.
(a) Cumulative Dividends. The holders of record
of Series D Stock shall be entitled to receive, as and if declared by the Board
of Directors, cumulative cash dividends thereon at the per annum rate per share
equal to the Established Dividend Rate (as defined in paragraph (c)), and no
more, but only out of funds legally available for the payment of such
distributions under the General Corporation Law of the State of Delaware.
Dividends on the Series D Stock shall not be payable unless and until declared
by the Board of Directors. Dividends shall accrue from the date of original
issuance. Accumulations of dividends shall not bear interest.
(b) Limitations Upon Dividend Arrearage. Unless
dividends that have been declared and are payable upon the Series D Stock have
been paid, no dividend or other distribution (except in Junior Stock) shall be
declared or paid on Dividend Junior Stock and no amount shall be set aside for
or applied to the redemption, purchase or other acquisition of (i) any Dividend
Junior Stock or Liquidation Junior Stock other than by exchange therefor of
Junior Stock or out of the proceeds of a
substantially concurrent sale of shares of Junior Stock or (ii) any Parity Stock
except in accordance with a purchase or exchange offer made simultaneously by
the Corporation to all holders of record of Parity Stock which, considering the
annual dividend rates and the other relative rights and preferences of such
shares, in the opinion of the Board of Directors (whose determination shall be
conclusive), will result in fair and equitable treatment among all such shares.
(c) The "Established Dividend Rate" shall
initially be $25.00, and shall be reset as provided in this paragraph. On each
December 16, beginning December 16, 1998 and continuing so long as any shares of
Series D Stock shall be outstanding, the Established Dividend Rate shall be
reset at a rate equal to $1,000 multiplied by 50% of the One Year Treasury Rate
that shall have been in effect at the close of business on the December 1 next
preceding (or if such December 1 shall not have been a business day, the
business day next preceding such December 1), rounded up to the nearest $1.00;
provided, however, that the Established Dividend Rate shall in no event be
greater than $50.00. For purposes of the preceding sentence, the "One Year
Treasury Rate" shall mean the rate for direct obligations of the United States
having a constant maturity of 1-year, as published in H.15(519) under the
heading "Treasury Constant Maturities", or, if not so published by such December
16, such rate as determined in good faith by the Corporation, which
determination absent manifest error shall be conclusive. The Corporation shall
file with the duly appointed transfer agent for the Series D Stock a certificate
stating the new Established Dividend Rate determined as provided in this
paragraph and showing the computation thereof, and will cause a notice stating
the new Established Dividend Rate and the computation thereof to be mailed to
the holders of shares of Series D Stock.
4. Liquidation Rights.
(a) Liquidation Value. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, the holders of Series D Stock shall be entitled to receive from the
assets of the Corporation, payment in cash, of $1,000 per share, plus a further
amount equal to unpaid cumulative dividends on Series D Stock accrued to the
date when such payments shall be made available to the holders thereof, and no
more, before any amount shall be paid or set aside for, or any distribution of
assets shall be made to the holders of Liquidation Junior Stock. If, upon such
liquidation, dissolution or winding up, the amounts available for distribution
to the holders of all Liquidation Parity Stock shall be insufficient to permit
the payment in full to such holders of the preferential amounts to which they
are entitled, then such amounts shall be paid ratably among the shares of
Liquidation Parity Stock in accordance with the respective preferential amounts
(including unpaid cumulative dividends, if any) payable with respect thereto if
paid in full.
(b) Actions Not Considered Liquidation. None of
the following shall be considered a liquidation, dissolution or winding up of
the Corporation within the meaning of this section: (1) a consolidation or
merger of the Corporation with or into any other corporation; (2) a merger of
any other corporation into the Corporation; (3) a reorganization of the
Corporation; (4) the purchase or redemption of all or part of the outstanding
shares of any class or classes of the Corporation; (5) a sale or transfer of all
or any part of the assets of the Corporation; or (6) a share exchange to which
the Corporation is a party.
5. Redemption.
(a) Optional Redemption. The Series D Stock may
be called for redemption and redeemed at the option of the Corporation by
resolution of the Board of Directors, in whole at any time or in part at any
time or from time to time upon the notice hereinafter provided for in paragraph
(c), by the payment therefor of the redemption price per share of $1,000 plus an
amount equal to the accrued and unpaid cumulative dividends thereon to the date
fixed by the Board of Directors as the redemption date. In addition, the
Corporation may so call for redemption at any time all, but not less than all,
of the shares of Series D Stock held by any person.
(b) No Mandatory Redemption. There is no mandatory
sinking fund for, or other required redemption of, the Series D Stock.
(c) Manner of Redemption.
(1) If less than all of the outstanding shares
of Series D Stock shall be called for redemption (and such redemption is not
pursuant to the second sentence of paragraph (a)), the particular shares to be
redeemed shall be selected by lot or by such other equitable manner as may be
prescribed by resolution of the Board of Directors.
(2) Notice of redemption of any shares of Series
D Stock shall be given by the Corporation by first-class mail, not less than 10
nor more than 60 days prior to the date fixed by the Board of Directors of the
Corporation for redemption (the "redemption date"), to the holders of record of
the shares to be redeemed at their respective addresses then appearing on the
records of the Corporation. The notice of the redemption shall state: (1) the
redemption date; (2) the redemption price; (3) if less than all outstanding
shares of Series D Stock of the holder are to be redeemed, the identification of
the shares of Series D Stock to be redeemed; (4) that dividends on the shares to
be redeemed shall cease to accrue on the redemption date; and (5) the place or
places where such shares of Series D Stock to be redeemed are to be surrendered
for payment of the redemption price.
(3) Notice having been mailed as aforesaid, from
and after the redemption date (unless default shall be made by the Corporation
in providing money for the payment of the redemption price of the shares called
for redemption), dividends on the shares of Series D Stock so called for
redemption shall cease to accrue, and from and after the redemption date or such
earlier date as funds shall be set aside for payment of the redemption price
(unless default shall be made by the Corporation in providing money for the
payment of the redemption price of the shares called for redemption) said shares
shall no longer be deemed to be outstanding, and all rights of the holders
thereof as stockholders of the Corporation (except the right to receive from the
Corporation the redemption price) shall cease. Upon surrender in accordance with
said notice of the certificates for any shares so redeemed (properly endorsed or
assigned for transfer, if the Board of Directors of the Corporation shall so
require and the notice shall so state), such shares shall be redeemed by the
Corporation at the redemption price aforesaid.
(4) Shares of Series D Stock redeemed by the
Corporation shall be restored to the status of authorized and unissued shares of
Series Preferred Stock, undesignated as to series, and, except as otherwise
provided by the express terms of any outstanding series, may be reissued by the
Corporation as shares of one or more series of Series Preferred Stock.
6. Voting Rights.
(a) No Voting Rights Generally. Except as expressly
provided to the contrary in this Part 4B or as otherwise required by law, the
holders of Series D Stock shall have no right to vote at, or to participate in,
any meeting of stockholders of the Corporation, or to receive any notice of such
meeting.
(b) Rights Upon Dividend Arrearage.
(1) In the event dividends that have been
declared and are payable upon the Series D Stock shall be in arrears, the number
of directors constituting the full board shall be increased by two, and the
holders of the Series D Stock voting noncumulatively and separately as a single
series together with the holders of any other shares of Series Preferred Stock
having the right to elect directors as a series under circumstances when
dividends are in arrears, shall be entitled to elect two members of the Board of
Directors of the Corporation at the next annual meeting of stockholders of the
Corporation or at a special meeting called as hereinafter provided in this
section. Such voting rights of the holders of Series D Stock shall continue
until all declared and unpaid dividends thereon shall have been paid in full,
whereupon such special voting rights of the holders of Series D Stock shall
cease (and the respective terms of the two additional directors shall thereupon
expire and the number of directors constituting the full board shall be
decreased by two) subject to being again revived from time to time
upon the recurrence of the conditions described in this section as giving rise
thereto.
(2) At any time when such right of holders of
Series D Stock to elect two additional directors shall have so vested, the
Corporation may, and upon the written request of the holders of record of not
less than 10% of the Series D Stock then outstanding (or 10% of all Series
Preferred Stock having the right to vote for such directors in case holders of
shares of other series of Series Preferred Stock shall also have the right to
elect directors as a class in circumstances when dividends are in arrears)
shall, call a special meeting of holders of such Series D Stock (and other
series of Series Preferred Stock, if applicable) for the election of directors.
In the case of such a written request, such special meeting shall be held within
60 days after the delivery of such request, and, in either case, at the place
and upon the notice provided by law and in the bylaws of the Corporation; except
that the Corporation shall not be required to call such a special meeting if
such request is received less than 120 days before the date fixed for the next
ensuing annual meeting of stockholders of the Corporation; provided, that the
holders of Series D Stock receive notice of such meeting and their right to vote
thereat.
(3) Whenever the number of directors of the
Corporation shall have been increased by two as provided in this section, the
number as so increased may thereafter be further increased or decreased in such
manner as may be permitted by the bylaws of the Corporation and without the vote
of the holders of Series D Stock. No such action shall impair the right of the
holders of Series D Stock to elect and to be represented by two directors as
provided in this section.
(4) The two directors elected as provided in
this section shall serve until the next annual meeting of stockholders of the
Corporation and until their respective successors shall be elected and qualified
or the earlier expiration of their terms as provided in this section. No such
director may be removed without the vote or consent of holders of a majority of
the shares of Series D Stock (or holders of a majority of shares of Series
Preferred Stock having the right to vote in the election of such director in
case holders of shares of other series of Series Preferred Stock shall also have
the right to elect such director as a class). If, prior to the expiration of the
term of any such director, a vacancy in the office of such director shall occur,
such vacancy shall, until the expiration of such term, in each case be filled by
appointment made by the remaining director elected as provided in this section.
7. Restrictions on Transfer. The shares of Series D
Stock shall not be transferable (other than by will or the laws of descent),
except that such shares may be transferred with the consent of the Board of
Directors of the Corporation.
8. No Conversion Rights. The holders of shares
of Series D Stock shall not have the right to convert such shares into other
securities of the Corporation.
FIFTH: Subject to the rights of holders of Series Preferred Stock to
elect additional directors under certain circumstances, the Corporation shall be
governed in accordance with the following provisions:
5A. Number of Directors The Board of Directors of the Corporation
shall consist of not less than nine and not more than 19 members and the Chief
Executive Officer of the Corporation shall always be one of the members. The
exact number of directors within such minimum and maximum shall be fixed by the
Board of Directors.
5B. Election Directors need not be elected by written ballot.
SIXTH: The By-Laws of the Corporation may be made, altered, amended,
changed, added to or repealed by the Board of Directors of the Corporation
without the assent or vote of the stockholders.
SEVENTH: Each person who was or is made a party or is threatened to be
made a party to or is involuntarily involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative ("proceeding"), by
reason of the fact that he or a person of whom he is the legal representative is
or was a director or officer of the Corporation or is or was serving at the
request of the
Corporation as a director or officer of another corporation, or as its
representative in a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity as a director, officer
or representative or in any other capacity while serving as a director, officer
or representative shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended, against all expenses, liability and
loss (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement) reasonably incurred or
suffered by him in connection therewith; provided, however, that the Corporation
shall indemnify any such person seeking indemnity in connection with an action,
suit or proceeding (or part thereof) initiated by such person only if action,
suit or proceeding (or part thereof) was authorized by the Board of Directors.
Such right shall be a contract right and shall include the right to be paid by
the Corporation expenses incurred in defending any such proceeding in advance of
its final disposition upon delivery to the Corporation of an undertaking, by or
on behalf of such person, to repay all amounts so advanced if it should be
determined ultimately that such person is not entitled to be indemnified under
this section or otherwise.
If a claim under this Article is not paid in full by the Corporation
within ninety days after a written claim has been received by the Corporation,
the claimant unpaid may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and if successful in whole
or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking
has been tendered to the Corporation) that the claimant has not met the
standards of conduct which make it permissible under the Delaware General
Corporation Law for the Corporation to indemnify the claimant for the amount
claim, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its Board of Directors, independent
legal counsel, or its stockholders) that the claimant had not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that claimant had not met the applicable standard of conduct.
The rights conferred by this Article shall not be exclusive of any
other right which such person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, By-Laws, agreement, vote of
stockholders or disinterested directors or otherwise.
The Corporation may maintain insurance, at its expense, to protect
itself and any such director, officer or representative against any such
expense, liability or loss, whether or not the Corporation would have the power
to indemnify him against such expense, liability or loss under the Delaware
General Corporation Law.
EIGHTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Restated Certificate of Incorporation in
the manner now or hereafter prescribed by law, and all rights and powers
conferred herein on stockholders, directors and officers are subject to this
reserved power.
NINTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed by the Corporation under the
provisions of Section 291 of Title 8 of the Delaware Code or on the application
of trustees in dissolution or of any receiver or receivers appointed for the
Corporation under the provisions of Section 279 of Title 8 of the Delaware Code
order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be, to
be summoned in such manner as the said Court directs. If a majority in number
representing three-fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of the Corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of
the Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the Court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all stockholders or class of
stockholders of the Corporation, as the case may be, and also on the
Corporation.
TENTH: To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or may hereafter be amended, a director of
this Corporation shall not be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as director.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation, which
restates and integrates and also further amends the Corporation's Certificate of
Incorporation, as heretofore amended and restated, having been duly adopted
pursuant to the provisions of Sections 242 and 245 of the General Corporation
Law of the State of Delaware, has been duly executed this 9th day of February,
1999.
ARAMARK CORPORATION
By: /s/ Martin W. Spector
---------------------------
Martin W. Spector
Executive Vice President